MARRIAGES & DEFACTO

An Overview

Marriage law

When a marriage comes to an end, the rights entitlements and responsibilities of the spouses are primarily governed by the provisions of the Family Law Act and the Child Support Legislation.

These laws are Commonwealth laws and apply in the same way throughout every State and Territory in Australia, with some minor changes in Western Australia.

The Courts that decide disputes in relation to children, property, spousal maintenance, divorce and other issues arising out of the breakdown of a marriage are Commonwealth Courts and are primarily the Family Court of Australia and the Federal Magistrates Court, a division of the Federal Court Australia.

In Queensland both of these Courts have their primary registries in Brisbane.

It is important to remember that in Australia we have a “no fault” divorce system so the issue of “fault” of either spouse in the cause of the breakdown of a marriage won’t impact on the capacity to obtain a divorce or the issues relating to children or finances.

Defacto and same sex relationship law

The majority of heterosexual and same sex de facto couples in Australia will now have their property and spousal maintenance matters dealt with under the Family Law Act, if the breakdown of their relationship occurred on or after 1 March 2009. The same provisions that apply for married couples in terms of the Family Law Act, will apply for de facto relationships.

In the event that the de facto relationship ended before 1 March 2009 your rights in relation to property arise under State Law. In Queensland your rights and responsibilities are set out in Part 19 of the Property Law Act and your case, will be heard in the Magistrates, District or Supreme Court, depending on the value of your assets.

Any issues in relation to children of parents living in a defacto relationship, including parents who have never lived together, will be decided in the same way as children of married parents. The Family Law Act applies to all children, regardless of the marital status of their parents.

If you need to have both your financial issues and issues in relation to your children decided by a Court then, if you separated prior to 1 March 2009, you will have to have your financial issues decided in one of the State Courts and the issues in relation to your children decided by a Judge of the Family Court or the Federal Magistrates Court. Otherwise, if you separated after 1 March 2009 both matters can be determined in the one Court process.

In the case of parties who separated before 1 March 2009 they can “opt in” to the new de facto laws in terms of the Family Law Act. There are certain requirements which have to be fulfilled for couples who want to “opt in” and this choice is unconditional and irrevocable.

There are also certain legal consequences on various rights and entitlements of “opting in” and you should obtain detailed legal advice beforecommitting to doing so. For parties whose final date of separation is on or after 1 March 2009, they will have to institute proceedings under the Family Law Act and do not have the option of proceeding with under State Law. The de facto provisions which are now included in the Family Law Act are largely similar to those which were already in existence for married couples. The two major changes are that spousal maintenance is now available to de facto couples and superannuation interest of defacto couples can be split. Child Support issues are generally dealt with by the Child Support Assessment and Collection Acts in the same way as for children whose parents are or have been married.

Divorce law

In Australia we have a “no fault” divorce system. That means that in order bring a legal end to your marriage you are not required to prove that either of you are “at fault”.

The main requirement is that a judge is satisfied that you and your spouse have been separated for 12 months. That period can include some time you might spend separated but still living in the same house.

If you have children the judge will also need to be satisfied that proper arrangements have been made for those children.

All sorts of complications can arise in applying for a divorce, although the process is designed to be a fairly straightforward one. We can assist you with applying for a divorce, particularly if you face some unusual or difficult circumstances such as not knowing where your spouse is or perhaps where there have been one or periods of attempted reconciliation throughout the 12 month period of separation you wish to rely on.

If you have a complicated divorce application, or you would just prefer a lawyer to handle the divorce application for you, then click here, provide us with your details and we will be able to assist you further.

Otherwise the Federal Magistrates Court provides a useful and easy to follow “do it yourself divorce kit” that you can download and use to apply for your divorce.